HOME SECRETARY TO GOVT PUNJAB Vs. SARWAN SINGH

JUDGEMENT

(1.) Brief facts necessary for the disposal of this revision petition are that the respondent Sarwan Singh was appointed as Warder by the Superintendent, Headquarter Jail, Amritsar, in 1983 on ad hoc basis for 89 days. After some break, he was reappointed for another term of 89 days. Ultimately the case of the respondent was placed before Departmental Selection Committee for regularisation in 1987. The said Committee found that Sarwan Singh did not fulfil the required physical standard and was thus not eligible to continue as a Warder. His services were accordingly terminated in 1987 in accordance with the terms and conditions of the letter of his appointment. Sarwan Singh respondent filed Civil Writ Petition No. 1912 of 1987 in this Court, which was dismissed by a Division Bench on 24/07/1987. Thereafter the plaintiff filed Civil Suit No. 85 dated 19/04/1988, for a declaration that the order terminating his services was null and void and that he continued to be in service. The suit was decreed by the learned Subordinate Judge, Amritsar, on 12/09/1990. An application for certified copy was made by the State, defendant in the suit, on 13/09/1990. The certified copies were ready on 5/10/1990. The period of 30 days for filing an appeal was to expire on 4/11/1990, after excluding the time taken for the preparation of the certified copy. Actually the appeal was filed late by 41 days on 15/12/1990. An application was made under Section 5 of the Limitation Act for condonation of delay. The explanation given was that the Home Secretary recorded a decision on the file on 31/10/1990, that the judgment and decee of the trial Court was to be appealed against and sent the file to the office of the Legal Remembrancer. It was marked to one Avtar Singh, Clerk, who was on leave, and on the expiry of his leave, he joined the office on 12/11/1990. He took time in taking up the case and some more time in tracing the back reference and handed over the papers to the dealing assistant on 26/11/1990. Clerk of the Superintendent; Jail, which was the department concerned, came to collect the papers, in order to hand over the same to the District Attorney for filing the appeal. It was found that certified copy of the decree sheet had been mislaid. A fresh certified copy of the decree-sheet was obtained and appeal filed on 15/12/1990. Affidavits of the officials concerned were filed with the application under Section 5 of the Limitation Act before the lower appellate Court. The learned Additional District Judge by order dated 27/04/1991, held that the appellant petitioner herein, failed to make out sufficient cause for condonation of delay, and accordingly dismissed the appeal as barred by limitation. It may be stated here that a Division Benih of this Court in Des Raj v. Om Prakash and Bidar Lal, 1985 PLJ 442 held that an order dismissing appeal after dismissal of application under Section 5 of the Limitation Act did not amount to a decree within the meaning of Section 2(2) of the Code of Civil Procedure. This is how the State has preferred the present revision instead of a regular second appeal.

(2.) The contention of Mr. P. S. Thiara, learned Assistant Advocate-General, Punjab, is that the question whether sufficient cause existed or not was a mixed question of law and fact and this Court had ample powers under Section 115 of the Code of Civil Procedure to interfere in the conclusion reached by the lower appellate Court. It was further submitted by Mr. Thiara that the latest trend of decisions of the apex Court was that Section 5 of the Limitation Act should be given a liberal construction to advance the cause of justice.

(3.) The contention of the learned Counsel for the respondent, on the other hand, is that the finding that there did not exist sufficient cause was a finding of fact of its revisional jurisdiction under Sec. 115 of the Code of Civil Procedure. Reliance has been placed on Des Raj's case (supra) (D. B.). The further contention of the learned Counsel is that the State is to be treated at par with a private party and is not entitled to any special concession in the matter of making out a case for condonation of delay. Learned Counsel also vehemently emphasised that with the expiry of the period of limitation a vested right had accrued in favour of the respondent and the said right could not be taken away unless the opposite party had made out a clear case of sufficient cause, explaining the delay. Reliance has been placed on The State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749 (Paragraphs 27-29).